Memorandum of Understanding Between The Equal Employment
Opportunity Commission and The Office of Special Counsel for
Immigration Related Unfair Employment Practices
The Equal Employment Opportunity Commission ("EEOC"),
under Title VII of the Civil Rights Act of 1964, as amended
("Title VII"), has jurisdiction to process charges alleging
individual act, pattern or practice, or class employment
discrimination on the basis of national origin and
retaliation. The Department of Justice, Civil Rights
Division, Office of the Special Counsel for Immigration
Related Unfair Employment Practices ("Special Counsel"),
under section 274B of the Immigration and Nationality Act,
has jurisdiction to process charges alleging an individual
act or a pattern or practice of employment discrimination on
the bases of national origin, citizenship status, unfair
document practices, and intimidation or retaliation. The
purpose of this Memorandum of Understanding between the EEOC
and the Special Counsel is to prevent any overlap in the
filing of charges of discrimination under these statutes and
to promote efficiency in their administration and
enforcement. This Memorandum of Understanding is intended
to apply to Title VII and Section 274B of the Immigration
and Nationality Act as currently written, as well as to any
future amendments of these acts.
The parties to this Memorandum agree as follows:
I. Exchange of Information
The EEOC and the Special Counsel shall make available
for inspection and copying to officials from the other
agency any information in their records pertaining to a
charge or complaint being processed by the requesting
agency. Such request shall be made by the Chairman of the
EEOC or his or her designee, or the Special Counsel or his
or her designee.
II. Confidentiality
When the Special Counsel receives information obtained
by the EEOC which is subject to the confidentiality
requirements of sections 706(b) and 709(e) of Title VII, the
Special Counsel shall observe those requirements as would
the EEOC, except in cases where the Special Counsel receives
the same information from a source independent of the EEOC.
III. Referral of Charges
When, during the processing of a charge by either
agency, it becomes apparent to the agency processing the
charge that the charge or any aspect of the charge falls
outside its jurisdiction, but may be within the jurisdiction
of the other agency, the agency processing the charge will
immediately dismiss as much of the charge as may fall within
the jurisdiction of the other agency and, if the charging
party has not declined referral, refer the dismissed aspects
of the charge to the other agency, and notify the charging
party and the respondent of the referral. In determining
whether to refer such a charge or such aspect of a charge to
the other agency, the agency processing the charge shall be
guided by the attached Guidelines.
IV. Appointment of Respective Agents
By this Memorandum of Understanding, the agencies
hereby appoint each other to act as their respective agents
for the sole purpose of allowing charging parties to file
charges to satisfy the statutory time limits. To ensure
that filing deadlines are satisfied, each agency will
accurately record the date of receipt of charges and notify
the other agency of the date of receipt when referring a
charge.
This Memorandum of Understanding supersedes the 1989
agreement.
Dated: December 18, 1997
Approved and Accepted for the Equal Employment
Opportunity Commission.
/s/
Gilbert F. Casellas
Chairman
Equal Employment Opportunity Commission
Dated: December 18, 1997
Approved and Accepted for the Office of Special Counsel
for Immigration Related Unfair Employment Practices.
/s/
John D. Trasvi¤a
Special Counsel
Office of Special Counsel for Immigration Related Unfair
Employment Practices
Guidelines for EEOC Staff
I. National Origin Charges
Charges or aspects of charges alleging an individual
act or a pattern or practice of discrimination on the basis
of national origin should be referred to the Special Counsel
when all of the following conditions are met:
(1) The charge alleges discrimination against the
complainant with respect to his or her hiring, discharge, or
recruitment or referral for a fee;
(2) The charge is outside the jurisdiction of the EEOC
in that the employer (a) does not have 15 or more employees
for each working day in each of 20 or more calendar weeks in
the current or preceding calendar year or (b) is an employer
that is expressly excluded from coverage under Title VII;
and
(3) The employer may have had at least 4 employees,
including both full-time and part-time employees, on the
date of the alleged discriminatory occurrence as required by
the Special Counsel's regulations at 28 CFR Part 44.
II. Citizenship Status Charges
A. Referral to the Special Counsel
Charges or aspects of charges alleging an individual
act or a pattern or practice of discrimination on the basis
of citizenship status should be referred to the Special
Counsel when all of the following conditions are met:
(1) The charge alleges discrimination against the
complainant with respect to his or her hiring, discharge, or
recruitment or referral for a fee; and
(2) The employer may have had at least 4 employees,
including both full-time and part-time employees, on the
date of the alleged discriminatory occurrence as required by
the Special Counsel's regulations at 28 CFR Part 44.
B. Special Procedures
(1) A charge or aspect of a charge of citizenship
status discrimination that cannot be referred to the Special
Counsel should, to the extent possible, be construed as
alleging national origin discrimination and processed in
accordance with Title VII, if the employer otherwise is
covered by Title VII.
(2) A charge or aspect of a charge that alleges that a
citizenship requirement or preference has the purpose or
effect of discriminating on the basis of national origin and
is otherwise within the jurisdiction of the EEOC, should be
processed in accordance with Title VII. See 29 CFR Part
1606 and Espinoza v. Farah Mfg. Co. Inc., 414 U.S. 86
(1973). In addition, if any aspect of this charge satisfies
the conditions, described in section II A above, for
referral to the Special Counsel, it should be so referred.
III. Unfair Document Practices (Document Abuse)
A. Referral to the Special Counsel
Charges or aspects of charges alleging an individual
act or a pattern or practice of document abuse should be
referred to the Special Counsel when all of the following
conditions are met:
(1) The charge alleges that the employer requested
complainant to produce more or different documents than
required to complete the Immigration and Naturalization
Service Form I-9 (Employment Eligibility Verification form),
or that the complainant's documentation was rejected by the
employer during the I-9 process, or that the employer
requested the complainant to produce a specific document or
documents for purposes of completing the I-9 or establishing
employment eligibility; and
(2) The employer may have had at least 4 employees,
including both full-time and part-time employees, on the
date of the alleged document abuse as required by the
Special Counsel's regulations at 28 CFR Part 44.
B. Special Procedures
(1) A charge or aspect of a charge of document abuse
that cannot be referred to the Special Counsel should be
construed to the extent possible as alleging national origin
discrimination, if the employer otherwise is covered by
Title VII.
(2) A charge or aspect of a charge alleging that
document abuse has the purpose or effect of discriminating
on the basis of national origin should, to the extent
possible, be processed in accordance with Title VII, if the
employer otherwise is covered by Title VII. In addition, if
any aspect of this charge satisfies the conditions,
described in section III A above, for referral to the
Special Counsel, it should be so referred.
IV. Intimidation or Retaliation
Charges or aspects of charges alleging an individual
act or a pattern or practice of intimidation or retaliation
should be referred to the Special Counsel when all of the
following conditions are met:
(1) The charge alleges that any person or other entity
intimidated, threatened, coerced, or retaliated against any
individual for the purpose of interfering with any right or
privilege secured under section 274B of the Immigration and
Nationality Act, or because the individual intends to file
or has filed a charge or complaint, testified, assisted, or
participated in any manner in any investigation, proceeding,
or hearing under section 274B of the INA; and
(2) The person or other entity employs four or more
individuals.
V. Unique Situations
If a charge or aspect of a charge raises allegations
not directly addressed in these guidelines and EEOC staff
believes that referral to the Special Counsel may be
appropriate, EEOC staff shall contact EEOC's Office of Legal
Counsel, who then shall consult with the Office of Special
Counsel.
VI. Procedure for Referral
A. General Provisions
(1) When the charging party has not declined referral,
any charge or aspect of a charge alleging discrimination on
the basis of national origin, citizenship status,
retaliation, or document abuse that satisfies all of the
conditions for referral to the Special Counsel should be
forwarded by EEOC staff, with the appropriate file, to the
Office of Special Counsel for Immigration Related Unfair
Employment Practices, P.O.Box 27728, Washington, DC 20038-7728.
(2) When forwarding a charge or aspect of a charge to
the Special Counsel, EEOC staff should follow any
instructions issued by the Commission regarding this
procedure, including instructions relevant to informing the
charging party of the possibility of referral and providing
notice of the referral to the parties.
B. Additional Procedures Where the Commission Retains
Jurisdiction
(1) Where the Commission retains jurisdiction over any
aspect of a charge when another aspect of the charge is
being referred to the Special Counsel in accordance with
these Guidelines, the EEOC field office, when making the
referral, will inform the Special Counsel of the retained
jurisdiction. This notice to the Special Counsel will
specify the allegation(s) over which the Commission retains
jurisdiction. The notice will also state that the
processing EEOC field office will consult with the Special
Counsel to coordinate, to the extent possible, the
investigative activities of both agencies and assure that
duplication of effort in processing the charge is minimized.
(2) After confirming that the Special Counsel has
received the referred aspect of the charge, the EEOC field
office should attempt consultations with the Special Counsel
to coordinate, to the extent possible, the investigative
activities of both agencies and assure that duplication of
effort in processing the charge is minimized.
C. Special Procedures Regarding 706 Agencies
Where preferable and not contrary to an existing work
sharing agreement, EEOC staff may choose not to defer to a
706 Agency any charge or portion of a charge, if the charge
or any aspect of the charge satisfies all of the conditions
for referral to the Special Counsel. Charges or portions of
charges not deferred pursuant to this provision should be
processed according to the procedures described in these
Guidelines.
VII. Procedures Regarding Referrals from the Special Counsel
Upon receipt of a charge or aspect of a charge referred
from the Special Counsel, the processing EEOC field office
should confirm that the charge or aspect of a charge is
within the jurisdiction of the Commission. The field office
should then notify the Special Counsel of its receipt of the
charge or aspect of a charge.
If the Special Counsel has retained jurisdiction over
any aspect of a charge when another aspect of the charge has
been referred to the EEOC, the field office should attempt
to coordinate with the Special Counsel, to the extent
possible, the investigative activities of both agencies. If
the Special Counsel has not retained jurisdiction over any
aspect of a charge that has been referred to the EEOC, the
field office should process the referred charge as it would
any other charge of discrimination..Guidelines for Attorneys
in the Office of Special Counsel
I. National Origin Charges
Charges or aspects of charges alleging individual act,
pattern or practice, or class discrimination on the basis of
national origin should be referred to the EEOC when all of
the following conditions are met:
(1) Any aspect of the charge that alleges national
origin discrimination is outside the jurisdiction of the
Office of Special Counsel or fails to state a claim under 8
U.S.C. § 1324b; and
(2) The charge alleges discrimination against the
charging party with respect to his or her hiring, discharge,
compensation, terms, conditions, or privileges of
employment.
II. Citizenship Status and Document Abuse Charges
Charges or aspects of charges alleging individual act,
pattern or practice, or class discrimination on the basis of
citizenship status or document abuse should be referred to
the EEOC when all of the following conditions are met:
(1) Any aspect of the charge that alleges national
origin discrimination is outside the jurisdiction of the
Office of Special Counsel or fails to state a claim under 8
U.S.C. § 1324b;
(2) The charge alleges discrimination against the
charging party with respect to his or her hiring, discharge,
compensation, terms, conditions, or privileges of
employment; and
(3) The alleged discriminatory practice may have had
the purpose or effect of discriminating on the basis of
national origin.
III. Retaliation
Charges or aspects of charges alleging retaliation on
an individual, pattern or practice, or class basis should be
referred to EEOC when the charge alleges retaliation because
an individual has opposed an employment practice that he or
she believed to be unlawful under Title VII, or because an
individual has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under Title VII.
IV. Unique Situations
If a charge or aspect of a charge raises allegations
not directly addressed in these guidelines, and the Office
of Special Counsel staff believes that referral to the EEOC
may be appropriate, Office of Special Counsel staff shall
consult with the Special Counsel, who will designate an
Office of Special Counsel attorney to consult with the
EEOC's Office of Legal Counsel.
V. Procedure for Referral
A. General Provisions
When the charging party has not declined referral, any
charge or aspect of a charge alleging individual act,
pattern or practice, or class discrimination on the basis of
national origin, citizenship status, retaliation, or
document abuse that satisfies all of the conditions for
referral to the EEOC should be forwarded to the appropriate
EEOC field office.
B. Additional Procedures Where the Office of Special
Counsel Retains Jurisdiction
(1) Where the Office of Special Counsel retains
jurisdiction over any aspect of a charge when another aspect
of the charge is being referred to the EEOC in accordance
with these Guidelines, the attorney making the referral will
inform the EEOC of the retained jurisdiction. This notice
to the EEOC will specify the claim(s) over which the Office
of Special Counsel retains jurisdiction. The notice will
also state that the processing attorney will consult with
the EEOC to coordinate, to the extent possible, the
investigative activities of both agencies and assure that
duplication of effort in processing the charge is minimized.
(2) After confirming that the EEOC has received the
referred aspect of the charge, the Office of Special Counsel
attorney should attempt consultations with the EEOC to
coordinate, to the extent possible, the investigative
activities of both agencies and assure that duplication of
effort in processing the charge is minimized.
VI. Procedures Regarding Referrals from the EEOC
Upon receipt of a charge or aspect of a charge referred
from the EEOC, the Office of Special Counsel should confirm
that the charge or aspect of a charge is within the
jurisdiction of the Office of Special Counsel.
If the EEOC has retained jurisdiction over any aspect
of a charge when another aspect of the charge has been
referred to the Office of Special Counsel, the attorney
handling the charge for the Office of Special Counsel should
attempt to coordinate, to the extent possible, the
investigative activities of both agencies. If the EEOC has
not retained jurisdiction over any aspect of a charge that
has been referred to the Office of Special Counsel, the
attorney should process the charge as he or she would any
other charge of discrimination.